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Right to convert under Article 25: Evangelical Fellowship of India & Anr. v. State of Himachal Pradesh & Anr. (2012)
Date of judgement: 30/08/2012
Court: High Court of Himachal Pradesh
Background:
The subject matter of the petition was a culmination of 2 writs filed by a Registered Society and a Trust, seeking the striking down of the Himachal Pradesh Freedom of Religion Act, 2006 and subsequently, the Rules, 2007 as their provisions were contended to be ultra vires the Constitution, violating Articles 14, 19(1), 21 & 25.
Himachal Pradesh Freedom of Religion Act, 2006 and Himachal Pradesh Freedom of Religion Rules, 2007:
The Act of 2006 was enacted with the purpose of prohibiting the conversion of religion by the use of force, inducement and fraudulent means. Section 2(a) of the Act defines conversion as the renouncing of one religion and the adopting of another. Force has been defined under section 2(b) as a show of force, threat of injury, threat of divine displeasure or social ex-communication. Fraud under 2(c) means misrepresentation or use of fraudulent means an inducement under 2(d) includes the offer of a gift or gratification in cash or kind.
Section 3 of the Act prohibits one from converting another’s religion by the use of force, fraud or inducement and bars abetment of the same. Under section 4 of the Act, a person who wishes to convert by his own volition has to serve a notice to the District magistrate 30 days prior to the conversion and failing to do so is punishable with a fine of up to Rs. 1000. However, a person who wishes to go back to his original religion need not serve a notice.
The Rules of 2007 came into being by virtue of powers conferred to the State Government under section 8 of the Act. Rule 3 is in pursuance of Section 4 of the Act and directs a person domiciled in the state to serve a notice to the District Magistrate of the district in which he is a permanent resident and the same shall be entered in the Registrar of Notices, a public document. Following the notice, an agency would be asked to enquire into the matter and submit their findings.
Issues:
- Whether sections 2 (a), 2 (b), 2 (c), 2 (d), 4, 8 of the Act and Rules 3, 4, 5 and 6 of the Himachal Pradesh Freedom of Religion and the Rules of 2007. are ultra vires the Constitution.
- Whether the freedom to propagate religion under Article 25(1) includes the right to convert another.
- Whether Section 4 of the Act and Rules 3 and 5 affect the fundamental rights of those seeking conversion.
Laws Applicable:
- Constitution of India, 1950
- The Himachal Pradesh Freedom of Religion Act, 2006 (hereinafter referred to as the Act).
- Himachal Pradesh Freedom of Religion Rules, 2007 (hereinafter referred to as the Rules of 2007).
Right to convert another’s religion:
The Hon’ble 2 judge bench of the High Court at Shimla placed emphasis on 2 key decisions in this matter by the Supreme Court in Rev. Stanislaus v. State of Madhya Pradesh & Ors.(1977) and Satya Ranjan Majhi & Anr. v. State of Orissa & Ors. (2003). The learned judges referred to the aforestated decisions as the impugned Act bore similarities to the Madhya Pradesh Dharma Swatantraya Adhiniyam, 1968 and the Orissa Freedom of Religion Act,1967.
In Rev. Stanislaus, the Apex Court held that the right to propagate under Article 25(1) does not include the right to convert another’s religion but simply means to transmit and spread ideas about the tenets of one’s religion. The learned judges relied on the fundamental right of freedom of conscience over which one has the autonomy to decide and believe/follow without involving others. By seeking a right to convert another’s religion through propagation, one essentially waives another’s freedom of conscience and belief. Our Constitution follows a secular framework and places all religions at an equal footing and no religion could denigrate, cast aspersions or look down upon another’s. The Apex courts in both the cases held that the purposes of the State legislations were for the purpose of securing public order by absolutely barring forced conversions. The Court also added that the State was entitled to enact statutes on religion as the specific legislation were to ensure public order and guarantee individuals their sacred right to religion. The Hon’ble 2 judge bench of the High Court ruled that it was already settled principle of law that one could not claim the right to convert another.
To propagate under Article 25 is limited to the dispersion of values and virtues advocated by a religion. The essence of secularism is the tolerance and acceptance of all religions and peaceful propagation confined to the limits of law is not prohibited. No individual can seek the right to convert another's religion under the pretext of propagation under Artice 25, as that conversion has to be effectuated by the convertee by one's own decision.
Right to convert:
Article 25 of the Constitution includes the right of conscience, right of belief and the right to change that belief. It was observed through various judgements that conversions were not barred in India as long as they were brought about by free will.
A person’s conscience may change with time or circumstances and it is that person’s individual autonomy to later change his belief. Propagation and subsequent conversion under Article 25(1) lose its virtue if they have been caused by sword or money power. The learned judges in their verdict affirmed a person’s inherent fundamental right to convert his religion if caused by free will and in the absence of any latent gratification.
Constitutionality of the Act:
The petitioners requested the Court to strike down the Act in entirety. The Court, however, rejected the request partly as the validity of State legislation concerning forced conversions were previously upheld by the Apex Court in the cases of 1977 & 2003.
The petitioners further contended that the wordings of the definitions for “fraud”, “force” and “inducement” were vague and would be misinterpreted. The court compared the definitions used in the Madhya Pradesh & Orissa Acts and found all three legislations to have identical definitions for the terms. The only difference being, the Madhya Pradesh Act employed the term allurement instead of inducement. The validity of the Acts with the same definitions was already established and the contention was thus rejected. However, the court held that the definitions could always be challenged if they were proved to have been misused.
Despite the initial setback to the petitioners and validating of the Act in entirety, the winds of relief blew through as the Court identified that the impugned Act contained a section that could not be found in the other state legislations. Section 4 of the Act required a person who wished to convert to send a notice to the District Magistrate thus making it a public record and subsequently a violation of privacy. The learned judges inferred the concept of privacy from various decisions of the Supreme Court and held that privacy was an essential facet of liberty. A 2009 judgement of the Delhi High Court while dealing with the publication of marriage notices under the Special Marriage Act observed that unwarranted publications could even jeopardise the marriage itself and thus struck down the provision as it violated privacy. [1]
They drew reference from the verdict in the 2009 case and adopted the rationale that, by mandating publication, a person seeking conversion could be subject to physical and psychological torture by radicals. The Court also questioned the necessity for such a provision that caused more harm than the problem. It was also reasoned that a person does not undergo or seek to undergo conversion on a specific day but rather it is an ongoing process and the state was simply incapable of determining when a person actually converted. Moreover, the lack of need for notice to convert to the original religion under section 4 was held to be severely flawed and arbitrary.
The judges also held that the imposition of penalties on individuals who failed to serve notice was irrational as the statute must have in fact imposed severe penalties on those forcing conversions. Rule 3 was in pursuance of section 4, an unconstitutional provision and subsequently scrapped.
Conclusion:
Similar Acts exist in states such as Arunachal Pradesh, Tamil Nadu & Gujarat in addition to those discussed in this case. These legislations have been enacted to deal with the issue of proselytization that occurs rampantly as individuals try to influence others to give up their own religions either in exchange for benefits or by threatening. To change one’s religion is a fundamental right as long as it is free from force, fraud or inducement.
The 2 judge bench comprising of Deepak Gupta and Rajiv Sharma allowed the petitions to a limited extent and struck down Sec 4 and Rule 3, being violative of Article 14 and thus ultra vires whereas the rest of the Act and the Rules were held valid. The judgement recognised right to privacy as a fundamental right much prior to the affirmation by the Supreme Court in 2017. They emphasised on the distinct facets of Article 25 as they established that a person had the right of belief, right to change his belief by his free will and the right to keep that change a secret. It was also identified that until the date of the case, only one case had been registered under the Act, showing its inability to live up to its purpose.
In 2019, the State Assembly passed the Himachal Pradesh Freedom of Religion Act with revised provisions, fines and penalties. However, section 7 of the new legislation reinstated provisions of section 4 that were held to be unconstitutional by this court. The move was defended on the ground that the number of forced conversions were going unnoticed and were being done discreetly on a rampant scale. [2]
[1] Pranav Kumar Mishra & Ors. v. Government of NCT of Delhi & Anr., WP (C) No. 748 of 2009:
[2] Ashwani Sharma, Himachal’s new anti-conversion law has an old provision quashed by high court, The Indian Express (19 Sept., 2019), https://indianexpress.com/article/india/himachal-pradesh-new-anti-conversion-law-has-an-old-provision-quashed-by-high-court-6009421/.
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